The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,

Meeting on 3 November 1993,

Adopts the following:

Decision on admissibility

1. The author of the communication is R.E.d.B., a Dutch citizen born
on 26 June 1952, currently residing in Leeuwarden, the Netherlands. He
claims to be a victim of a violation of article 26 of the International
Covenant on Civil and Political Rights. He is represented by counsel.

The facts as submitted by the author:

2.1 The author, who is mentally ill, has been confined to a nursing
home since 17 August 1971. He came of age on 26 June 1973; until then,
his parents had been his legal representatives. On 15 December 1987, a
legal guardian was appointed for him. The author states that, between 26
June 1973 and 15 December 1987, he depended on the good will of others
for the protection and defence of his rights.

2.2 The author visits his parental home during weekends; the visits
are said to be of crucial importance for his mental and physical well-being.
These visits incur extra travel and boarding expenses. On 2 July 1987,
the author, represented by his parents, applied for benefits under the
Social Security Act (Algemene Bijstandswet) to obtain compensation
for these costs. On 24 November 1987, the municipality of Ferwederadeel
granted the author benefits in the amount of Nfl 260,69 per month, to run
from the date of application, i.e. 2 July 1987.

2.3 The author requested a review of the decision, on the ground that
these benefits should have been granted retroactively, as of 17 August
1971. On 1 March 1988, the Municipality confirmed its earlier decision.
The author appealed to the provincial authorities of Friesland, which rejected
his appeal on 2 November 1988. On 3 October 1990, the Council of State's
Division for Administrative Litigation (Raad van State, Afdeling
Geschillen van Bestuur) dismissed the author's further appeal.

2.4 The Council's Administrative Division considered that under the
Social Security Act, no benefits can be granted for a period prior to the
date of application and that it is the applicant's own responsibility to
apply for benefits in a timely manner. Only extraordinary circumstances
might justify exceptions to this rule. In the author's case, no such circumstances
were found to exist. Since the law makes it possible for others to apply
for a benefit on behalf of someone, the Council considered that the author's
parents could have applied for the benefit on his behalf earlier.

2.5 The Council further noted that during the first period of his stay
in the nursing home, the author was still a minor, legally represented
by his parents. It further noted that it appeared from the file that the
author's parents did in fact look after his interests, until a legal guardian
was appointed. Since the author's interests were being looked after, the
Council found that there had been no need for the municipality to have
granted a benefit proprio motu. It rejected the author's claim that
article 26 of the Covenant had been violated in the case.

The complaint:

3.1 The author claims that, since he had no legal representative from
26 June 1973 to 15 December 1987, he was not capable of filing an application
for benefits under the ABW, and that therefore special circumstances existed
to grant him benefits with retroactive effect. He claims that the denial
of retroactive benefits in his case amounts to a violation of article 26
of the Covenant, since it constitutes a factual discrimination vis-à-vis
those who, like him, are mentally handicapped and thus unable to protect
their own interests.

3.2 In this context, the author claims that the State should enhance
the enjoyment of social rights. This requires, according to the author,
that the Dutch authorities should have granted him benefits on their own
initiative, as they were aware of his particular situation.

Issues and proceedings before the Committee:

4.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.

4.2 The author claims to be a victim of a violation of article 26 of
the Covenant, because he has not been granted social security benefits
retroactively; he claims that, even though he did not apply for benefits
earlier, the State party should have granted him benefits proprio motu.
The Committee notes that Dutch legislation does not provide for the granting
of retroactive benefits under the Social Security Act, and that the Administrative
Division of the Council of State considered that no extraordinary circumstances
existed that would have justified an exception, since the author's parents
could have applied for benefits on his behalf.

4.3 The Committee notes that the author has not substantiated, for purposes
of admissibility, that he was denied a retroactive benefit on any of the
grounds covered by article 26 of the Covenant or that the provisions of
the Social Security Act were not equally applied to him. Accordingly, the
Committee finds that the communication is inadmissible under article 2
of the Optional Protocol.

5. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible under article 2 of the Optional
Protocol;

(b) that this decision shall be communicated to the author and to his
counsel, and, for information, to the State party.

[Done in English, French and Spanish, the English text being the original
version.]

footnotes

* All persons handling this document are requested
to respect and observe its confidential nature.